Citation Nr: 0805432
Decision Date: 02/15/08 Archive Date: 02/26/08
DOCKET NO. 05-37 297 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for the
residuals of a left frontal-temporal hematoma, based on
treatment and hospitalization at a VA facility beginning on
August 14, 1999.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. C. Graham, Counsel
INTRODUCTION
The veteran served on active duty from May 1977 to May 1981.
The instant appeal arose from a November 2004 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO), in Baltimore, Maryland, which denied a claim for
compensation under § 1151 for cerebral hemorrhage.
FINDINGS OF FACT
1. VA medical records reveal that the veteran was diagnosed
with endocarditis in 1998 and that the veteran was
hospitalized at a VA medical center for leg pain on August
14, 1999. Treatment included intravenous heparin, and the
dosage of heparin was gradually increased over the next few
days.
2. On August 17, 1999, the veteran was found in his hospital
bed, incontinent of urine, with slurred speech, flaccid
paralysis of the left arm and left leg, and pain in the right
temporal area. He was diagnosed with right frontal
intracranial hematoma.
3. Affording the veteran the benefit of the doubt, his left
frontal-temporal hematoma was due to VA negligence, lack of
proper skill, or similar instance of fault on the part of VA
in furnishing medical treatment.
CONCLUSION OF LAW
Entitlement to compensation under the provisions of Title 38,
Section 1151, United States Code, for residuals of a left
frontal-temporal hematoma is warranted. 38 U.S.C.A. §§ 1151,
5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.361 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran claims entitlement to compensation under
38 U.S.C.A. § 1151 for the residuals of a left frontal
temporal hematoma based on treatment and hospitalization at a
VA facility beginning on August 14, 1999.
Initially, the Board notes that the medical evidence of
record related to the veteran's claim is substantial: it
fills a claims file of seven volumes and is over one foot
thick. The Board has reviewed all of the evidence of record
and will summarize it of the sake of brevity.
The majority of the medical evidence of record consists of VA
medical records dated from 1982 to 2007. In addition to the
period of treatment at issue in this appeal, these records
include several periods of hospitalization in 1998 for
endocarditis. They also reveal that the veteran has a long
history of substance abuse, including intravenous heroine
addiction and cocaine addiction.
The VA treatment records show that on August 14, 1999, the
veteran was residing in a VA domiciliary. He had complaints
of severe right leg and ankle pain and was admitted to the VA
medical facility nearby for inpatient treatment with possible
deep vein thrombosis. The VA discharge records for the
period of hospitalization at issue in this case indicated
that a VA physician treating the veteran discussed the case
with a physician at another local VA facility and was told
that Doppler studies were unavailable on the weekend, that he
should treat the veteran empirically, and that Doppler
studies should be taken on August 16. See VA discharge
summary for inpatient treatment from August 14, 1999, to
August 17, 1999. When Doppler studies were performed two
days later, they only included the thigh and not the lower
leg. Further, they were read as negative, as no vascular
specialist was available to read them.
During this time, the veteran was treated with intravenous
Heparin. The Heparin dosage was gradually increased over a
period of two days. The discharge records noted that "since
he was symptomatic but responding to Heparin, it was felt low
dose Heparin can be continued for three days in a young man
without any risk factors for bleeding . . . ."
Early in the morning of August 17, 1999, the veteran was
found in his hospital bed, incontinent of urine, with slurred
speech, flaccid paralysis of the left arm and left leg, and
pain in the right temporal area. The Heparin was
discontinued, and a computer tomography scan of the head
showed a left frontotemporal hematoma. That same day he
underwent a right frontal parietal craniotomy with evacuation
of hematoma at the University of Maryland Medical Center
Shock Trauma Center. He was an inpatient at VA facilities
until February 2000, primarily for intensive physical and
occupational therapy. VA treatment records dated in 2006 and
2007 show that he still has significant residuals from the
left frontotemporal hematoma, including drop foot on the left
and residual left-sided weakness.
In general, when a veteran experiences additional disability
as the result of hospital care, medical or surgical
treatment, or examination furnished by VA, disability
compensation shall be awarded in the same manner as if such
additional disability or death were service-connected.
38 U.S.C.A. § 1151 (West 2002 & Supp. 2007).
The provisions of 38 U.S.C.A. § 1151 provide that when there
is no willful misconduct by a veteran, disability resulting
from VA hospital care furnished the veteran will be
compensated in the same manner as if service-connected, if
the disability was caused by (A) carelessness, negligence,
lack of proper skill, error in judgment, or similar instance
of fault on the part of VA in furnishing hospital care or (B)
an event which is not reasonably foreseeable. See also
38 C.F.R. § 3.361 (2007).
The veteran contends that benefits are warranted for the
disability at issue, under the provisions of 38 U.S.C.A.
§ 1151, due to the actions of VA medical personnel beginning
on August 14, 1999, for the treatment of his right leg pain
which ultimately resulted in significant neurological
deficits.
In October 2004, the RO scheduled a VA medical examination.
The examiner noted that he reviewed the claims folder. The
examiner stated that "[a]s far as I can see from the
records, it is felt that [the veteran] had a mycotic aneurysm
which resulted in the cerebral bleed." He opined that
"[t]here is no evidence that this is due to any negligence
on the part of the staff at the hospital in my opinion."
The "negative" evidence in this case includes the October
2004 VA examiner's opinion and VA medical treatment records
which do not attribute the veteran's ICH to the Heparin
treatment. For example, the VA discharge report for the
veteran's 9-month rehabilitation following his stroke
diagnosed left frontal temporal hematoma secondary to
vasculitis or mycotic aneurysm secondary to intravenous
heroin addiction and cocaine. See VA discharge summary for
inpatient treatment from August 25, 1999, to February 8,
2000.
The veteran obtained a medical opinion from a private neuro-
radiologist, Dr. C. N. B., in December 2007. This medical
opinion reveals that the physician reviewed all of the
pertinent VA medical records for the period of time in
question. Dr. B. opined that "this patient's left frontal-
temporal hematoma is the direct result of his administration
of Heparin and that the use of Heparin was an error in
judgment/negligence/poor clinical skill." He stated that
the use of Heparin in patients with endocarditis is to be
used with extreme caution. He opined that a less dangerous
and equally effective alternative course of action was
treatment in the form of a Greenfield filter. It is
noteworthy that a Greenfield filter was inserted after he was
being treated for his hematoma, at the time of his craniotomy
on August 17, 1999.
Dr. B. stated that the choice to anti-coagulate was an
"error in judgment/skill/negligence likely due to the lack
of an available expert attending level physician at the VA
facility where the veteran was being treated." He noted
that no one was available to read leg Doppler studies, that
the Doppler studies had to be repeated due to poor
skill/findings, and that the other medical experts were
unable to provide fully informed medical treatment guidance
as they were located across town from the VA facility where
the veteran was receiving treatment. Dr. B. also provided
articles from contemporary medical publications to support
his conclusions.
Dr. B. noted that he agreed with the opinion of the VA
physician that the veteran had a serious intracranial
hemorrhage (ICH) and that the veteran had severe residual
neurologic deficits as a result. He explained that he
disagreed with the VA physician's opinion that there was no
negligence in this case. He noted that the VA physician did
not comment on the fact that the veteran's history of
echocarditis meant he was at high risk for ICH with the
administration of Heparin. He noted that that VA physician
did not provide a rationale for his opinion and did not
provide any literature to support his opinion. Further, he
noted that the VA physician did not provide comment on the
use of the Greenfield filter and did not address the apparent
lack of medical expertise at the facility where the veteran
was treated.
The "positive" evidence in this case includes Dr. B.'s
opinion as well as certain VA treatment records. The
discharge report from the veteran's hospitalization ending
August 19, 1999, diagnosed left frontal temporal hematoma
secondary to heroin and cocaine vasculitis and conjunctional
hemorrhage secondary to heparin. See VA discharge summary
for inpatient treatment from August 14, 1999, to August 17,
1999. Also, an August 17, 1999, VA treatment record
diagnosed a right frontal-parietal hematoma most likely
secondary to Heparin, and an August 18, 1999, VA treatment
record for placement of a vena cava filter noted a history of
ICH secondary to heparin treatment.
"When there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant." 38 U.S.C.A.
§ 5107(b) (West 2002); Gilbert v. Derwinski,1 Vet. App. 49,
55 (1990). The Board finds that there is at least such an
approximate balance in this case. Accordingly, benefits
under 38 U.S.C.A. § 1151 for residuals of a left frontal-
temporal hematoma are granted.
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In
this case, the Board is granting in full the benefit sought
on appeal. Accordingly, assuming, without deciding, that any
error was committed with respect to either the duty to notify
or the duty to assist, such error was harmless and will not
be further discussed.
ORDER
Compensation under 38 U.S.C.A. § 1151 for the residuals of
residuals of a left frontal-temporal hematoma based on
treatment and hospitalization at a VA facility beginning on
August 14, 1999, is granted, subject to the laws and
regulations governing the award of monetary benefits.
____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs